I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Saturday, April 22, 2006

Selectively punishing politically damaging leaks

The CIA's firing of the official who allegedly leaked the existence of Eastern European black prisons to Dana Priest of The Washington Post has prompted an orgy of celebration among Bush followers, who apparently believe that the dreams they harbor -- whereby anyone who discloses information which results in political harm to the leader will be imprisoned -- are about to be realized. The NSA leakers are next, they gleefully proclaim, followed by the whole parade of nefarious, traitorous "cockroaches" -- including reporters -- who have leaked and/or published information that resulted in embarrassment to The Commander-in-Chief in this Time of War.

As a general proposition, a government has the right to keep sensitive information classified and to fire employees who disclose it. But that is a power that also can be abused. The mere fact that information is classified does not mean that it ought to remain concealed. It has been extremely common for our government to attempt to conceal its wrongdoing by classifying information because it would reveal that wrongdoing. Whether the power to maintain the secrecy of classified information is being used properly or abusively is typically reflected by which type of unauthorized disclosures prompt strong action.

The Bush administration is extremely and transparently selective about the leaks it seeks to investigate and punish. The only leaks which they dislike are the ones which bring the President political embarrassment, not which generate harm to our national security. They exhibit anger and concern about leaks only when the leaks expose conduct by them which is highly controversial and where even its legality is dubious, at best.

A substantial part of the case for the invasion of Iraq was made by the administration through selective leaks of classified information to The New York Times. Almost every front page Judy Miller story was based upon leaks from anonymous "senior administration officials" designed to plant evidence of Saddam's massive WMD arsenal. None of those leaks has been decried by the administration or investigated, because they were employed in the service of the administration's political goals. Here is how Miller herself described what she did:

My job was not to collect information and analyze it independently as an intelligence agency; my job was to tell readers of the New York Times as best as I could figure out, what people inside the governments who had very high security clearances, who were not supposed to talk to me, were saying to one another about what they thought Iraq had and did not have in the area of weapons of mass destruction.

The very process which the administration and their followers claim to despise -- feeding classified information to the press -- is the primary tactic the administration used in order to convince Americans that Saddam was a danger and that we needed to go to war. Needless to say, none of those helpful-to-the-administration leaks to Miller has ever been the subject of an internal CIA investigation, polygraph tests to uncover the leaker, or criminal prosecutions by the Justice Department.

The administration does not dislike leaks of classified information. To the contrary, it is one of the most enthusiastic practitioners of such leaking. How many times over the past five years were we subjected to "leaked" information revealing supposed terrorist plots which were disrupted by the heroic administration or which revealed its super-intense anti-terrorist efforts?

When the NSA scandal first emerged, an extremely pro-administration leak suddenly appeared designed to vividly underscore (a) how dangerous and potentially destructive Muslims in this country are and (b) how heroic and vigilant is the administration in combating those threats. We thus learned from an anonymous government leaker that the administration had a super-top-secret program in place to detect unusual radioactivity in the nation's mosques and the detection is even conducted without warrants (!) -- a leak which suddenly depicted, at the height of the NSA controversy, that Muslims in this country may radiate your children but that the administration is using super-sophisticated and stealth means even if they are a little bit illegal (just like warrantless eavesdropping) to protect and save us all:

In search of a terrorist nuclear bomb, the federal government since 9/11 has run a far-reaching, top secret program to monitor radiation levels at over a hundred Muslim sites in the Washington, D.C., area, including mosques, homes, businesses, and warehouses, plus similar sites in at least five other cities, U.S. News has learned. In numerous cases, the monitoring required investigators to go on to the property under surveillance, although no search warrants or court orders were ever obtained, according to those with knowledge of the program. . . .

News of the program comes in the wake of revelations last week that, after 9/11, the Bush White House approved electronic surveillance of U.S. targets by the National Security Agency without court orders. These and other developments suggest that the federal government's domestic spying programs since 9/11 have been far broader than previously thought.

The source even helpfully tied the very uncontroversial radiation detection program into the highly controversial NSA warrantless eavesdropping program, in order to make the point, as I noted at the time:

Is it really necessary to comply with all of that paperwork – all of those bureaucratic warrant procedures which the subversive hippy losers are always yapping about – in order to stop terrorists from using nuclear weapons against us?

No investigation of that leak was ever announced. No cries of protest were heard from the administration over disclosure of this program. Why is that? Because that leak brought no political embarrassment to the administration; very few people would object to the use of such instruments to detect high levels of radiation in the country's neighborhood mosques. Indeed, this reflected well on the administraton, and it is hard to imagine who would have an incentive to "blow the cover" of this classified program other than those friendly to the administration. Where was the furor over that leak? Why aren't we investigating to find out who anonymously disclosed this program?

And then, of course, there is the indisputable leak by the administration of the indisputably classified information that Valerie Plame worked for the CIA, along with the leak by the President of various NIE statements to the press, and the frequent game-playing engaged in for years by the administration of selectively declassifying national security documents in order to achieve political aims.

All of the leaks about which Bush followers are so upset have a common attribute - they all reveal conduct by the government which is highly controversial and, in many cases, opposed by most citizens. None of the leaks falls into the category of the clear-cut case where national security is harmed without any public interest being served (the classic example being the advanced disclosure of troop movements, which is designed only to help the enemy without sparking any serious debate over a legitimately controversial issue). All of the leaks which are targeted by Bush followers for outrage and criminal prosecution all exposed government misconduct while avoiding any genuine national security harm. Their most significant impact, by far, was on the political front, not the security or military front.

There is virtually no significant government scandal in our country's history which did not rely upon disclosure of classified information to the press in order to expose the government's misconduct. The illegality of the Nixon administration was exposed almost exclusively through leaks by government employees of classified information, and virtually every Clinton scandal was achieved via leaks of classified and other secret information by sources hostile to the administration. Leaks of classified information are a critical part of how we check abuses on government secrecy; both sides have always used them and still do; and the government's power to punish leakers -- when used selectively and aggressively -- becomes the power to conceal one's wrongdoing.

If we had the society which Bush followers are seeking to impose -- where anyone is imprisoned who discloses, or writes about, any information marked "classified" by the government -- Watergate misconduct would never have been exposed. We would not know that the administration was eavesdropping on us without warrants in violation of the law. We would not know that our government systematically used torture as a routine interrogation device nor that it disappeared terrorist suspects to black prisons. And we would not have learned of the substantial doubts which existed, and the evidence bolstering those doubts, regarding Saddam's weapons capability prior to our invasion. Nor, for that matter, would we have recently learned about the administration's apparently advanced plans to wage war on Iran.

These types of unauthorized disclosures, more than anything else, are what accounts for the fact that Americans finally realized what type of government we really have, and caused literally millions of Americans to abandon this President and his administration. Is it really any wonder why the president's followers are so eager to imprison the people responsible for these types of leaks, while insistently ignoring the leaks designed to help the president? This has nothing to do with national security or with safeguarding classified information. It is about punishment, vengeance, and deterrence -- all focused on those who have exposed, or who could expose, government misconduct that results in political harm to George Bush.

UPDATE: For a summary of the current state of the law governing disclosure of classified information -- including the prohibition against classifying information in order to "(1) conceal violations of law, inefficiency, or administrative error; [and] (2) prevent embarrassment to a person, organization, or agency" -- see here.

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